Common use of Stockholder Representative; Power of Attorney Clause in Contracts

Stockholder Representative; Power of Attorney. (i) In the event that the First Merger is approved, effective upon such vote, and without further act of any stockholder, Xx. Xxxxx Xxxxxx shall be appointed as agent and attorney-in-fact (the “Stockholder Representative”) for each Pathlore Stockholder (except such stockholders, if any, as shall have exercised their dissenters’ rights under the DGCL), for and on behalf of the Pathlore Stockholders, to do and perform every act and thing required or permitted to be done by any Pathlore Stockholder in connection with Article VII of this Agreement and the matters contemplated thereby, including to give and receive notices and communications, to authorize delivery to SumTotal of cash and stock from the Escrow Fund in satisfaction of claims by SumTotal, to object to such deliveries, to engage and employ agents and representatives (including accountants, legal counsel and other professionals) and to incur such other expenses as deemed necessary or prudent, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing. Such agency may be changed by the Pathlore Stockholders from time to time upon not less than thirty (30) days prior written notice to SumTotal; provided that the Stockholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. Any vacancy in the position of Stockholder Representative may be filled by approval of the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Stockholder Representative, and the Stockholder Representative shall not receive compensation for his or her services. The out-of-pocket fees and expenses incurred by the Stockholder Representative in connection with the performance of his duties and obligations hereunder shall be paid first from the Expense Reimbursement Amount in accordance with Section 1.7(e). Notices or communications to or from the Stockholder Representative shall constitute notice to or from each of the Pathlore Stockholders. The Stockholder Representative shall notify each of the Pathlore Stockholders, at the address set forth on the Spreadsheet (or such other address delivered in writing to the Stockholder Representative), of any claim made by an Indemnified Party hereunder pursuant to Section 7.3(d). (ii) The Stockholder Representative shall not be liable for any act done or omitted hereunder as Stockholder Representative in good faith, absent bad faith or willful misconduct. The Pathlore Stockholders on whose behalf the Escrow Amount was contributed to the Escrow Fund shall severally indemnify the Stockholder Representative from the Escrow Fund and hold the Stockholder Representative harmless against any loss, liability or expense incurred without bad faith or willful misconduct on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative. Subject to Section 1.7(e), all other reasonable expenses incurred by the Stockholder Representative shall be paid out of the Escrow Amount after all distributions to SumTotal are made in satisfaction of any claims on the Escrow Fund and prior to any distribution to the Pathlore Stockholders.

Stockholder Representative; Power of Attorney. (i) In Each of the event that the First Merger is approvedparties hereto agrees that, effective upon such vote, the execution of this Agreement and without further act of any stockholderIndemnifying Party, Xx. Xxxxx and for valuable consideration (being the mutual obligations assumed by the parties under this Agreement), Xxxxxxx Xxxxxx shall be irrevocably (subject to any change of such agency upon prior written consent of a Majority-in-Interest as provided below) appointed as agent and attorney-in-fact for each Company Stockholder (the “Stockholder Representative”) for each Pathlore Stockholder (except such stockholders, if any, as shall have exercised their dissenters’ rights under the DGCL), for and on behalf of the Pathlore Stockholdersall of them, to do and perform every act and thing required or permitted to be done by any Pathlore Stockholder in connection with Article VII of this Agreement and the matters contemplated thereby, including to give and receive notices and communications, to authorize delivery payments to SumTotal of cash and stock from the Escrow Fund any Parent Indemnified Party in satisfaction of claims by SumTotalany Parent Indemnified Party, to object to such deliveries, to engage and employ agents and representatives (including accountants, legal counsel and other professionals) and to incur such other expenses as deemed necessary or prudentpayments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to agree to modifications, amendments and waivers to this Agreement on behalf of the Company Stockholders, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Parent Indemnified Party against any Company Stockholder or by any Company Stockholder against any Parent Indemnified Party or any dispute between any Parent Indemnified Party and any Company Stockholder, in each case relating to this Agreement or the Acquisition or the other transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoingforegoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Pathlore Company Stockholders from time to time upon not less than thirty (30) days prior written notice to SumTotal; provided that the Stockholder Representative may not be removed unless holders consent of a twoMajority-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. Any vacancy in the position of Stockholder Representative may be filled by approval of the holders of a majority in interest of the Escrow Fundin-Interest. No bond shall be required of the Stockholder Representative, and the Stockholder Representative shall not receive any compensation for his or her its services. The out-of-pocket ; provided, however, that the Stockholder Representative shall be entitled to seek reimbursement from the Escrow Fund for any reasonable fees and expenses incurred by the Stockholder Representative in connection with the performance of his the Stockholder Representative’s duties and obligations hereunder shall be paid first from up to $5,000 in the Expense Reimbursement Amount in accordance with Section 1.7(e)aggregate. Notices or communications to or from the Stockholder Representative shall constitute notice to or from each of the Pathlore Company Stockholders. The A decision, act, consent or instruction of the Stockholder Representative (including an amendment, extension or waiver of this Agreement) shall notify constitute a decision of all the Company Stockholders, and shall be final, binding and conclusive upon each Company Stockholder, and Buyer may rely upon any such decision, act, consent or instruction of the Pathlore StockholdersStockholder Representative as being the decision, at the address set forth on the Spreadsheet (act, consent or instruction of each Company Stockholder. The Escrow Agent and Buyer are hereby relieved from any Liability to any Person for any acts done by it in accordance with such other address delivered in writing to decision, act, consent or instruction of the Stockholder Representative), of any claim made by an Indemnified Party hereunder pursuant to Section 7.3(d). (ii) . The Stockholder Representative shall not be liable for any act done or omitted hereunder as the Stockholder Representative while acting in good faith, absent bad faith or willful misconductand in the exercise of reasonable judgment. The Pathlore Stockholders on whose behalf the Escrow Amount was contributed to the Escrow Fund Indemnifying Parties shall severally indemnify the Stockholder Representative from the Escrow Fund and hold the Stockholder Representative harmless against any loss, liability or expense incurred without negligence, willful misconduct or bad faith or willful misconduct on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder RepresentativeRepresentative (“Stockholder Representative Expense”). Subject Upon any payment to Section 1.7(e)the Stockholder Representative of amounts from the Escrow Fund for distribution to the Indemnifying Parties pursuant to Sections 8.4 and 8.5, all other reasonable expenses incurred by the Stockholder Representative shall be paid out have the right to recover the Stockholder Representative Expenses from the remaining Escrow Fund, up to an aggregate of the Escrow Amount after all distributions to SumTotal are made in satisfaction of any claims on the Escrow Fund and prior to any distribution to the Pathlore Stockholders$5,000.

Stockholder Representative; Power of Attorney. (i) In the event that the First Merger is approved, effective upon such vote, and without further act of any stockholder, Xx. Xxxxx Xxxxxx Pete Sinclair shall be appointed as agent and attorney-in-fact (the “Stockholder Representative”"SXXXXXXXXXX XXPRESENTATIVE") for each Pathlore Company Stockholder (except such stockholders, if any, as shall have exercised their dissenters’ ' rights under the DGCLDelaware Law), for and on behalf of the Pathlore Company Stockholders, to do and perform every act and thing required or permitted to be done by any Pathlore Stockholder in connection with Article VII of this Agreement and the matters contemplated thereby, including to give and receive notices and communications, to authorize delivery to SumTotal Parent of cash and stock from the Escrow Fund in satisfaction of claims by SumTotalParent, to object to such deliveries, to engage and employ agents and representatives (including accountants, legal counsel and other professionals) and to incur such other expenses as deemed necessary or prudent, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing. Such agency may be changed by the Pathlore Company Stockholders from time to time upon not less than thirty (30) days prior written notice to SumTotalParent; provided that the Stockholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. Any vacancy in the position of Stockholder Representative may be filled by approval of the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Stockholder Representative, and the Stockholder Representative shall not receive compensation for his or her services. The out-of-pocket fees and expenses incurred by the Stockholder Representative in connection with the performance of his duties and obligations hereunder shall be paid first from the Expense Reimbursement Amount in accordance with Section 1.7(e). Notices or communications to or from the Stockholder Representative shall constitute notice to or from each of the Pathlore Company Stockholders. The Stockholder Representative shall notify each of the Pathlore Stockholders, at the address set forth on the Spreadsheet (or such other address delivered in writing to the Stockholder Representative), of any claim made by an Indemnified Party hereunder pursuant to Section 7.3(d). (ii) The Stockholder Representative shall not be liable for any act done or omitted hereunder as Stockholder Representative in good faith, absent bad faith or willful misconductgross negligence. The Pathlore Company Stockholders on whose behalf the Escrow Amount was contributed to the Escrow Fund shall severally indemnify the Stockholder Representative from the Escrow Fund and hold the Stockholder Representative harmless against any loss, liability or expense incurred without gross negligence or bad faith or willful misconduct on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative’s 's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative. Subject to Section 1.7(e), all All other reasonable expenses incurred by the Stockholder Representative shall be paid out of the Escrow Amount after all distributions to SumTotal Parent are made in satisfaction of any claims on the Escrow Fund and prior to any distribution to the Pathlore Company Stockholders.

Stockholder Representative; Power of Attorney. (ia) In the event that the First Merger is approvedapproved by the Stockholders, effective upon such vote, and without further act of any stockholderIndemnifying Party, Xx. Xxxxx Xxxxxx shall be Xxxxxxx Xxxx is appointed as agent and attorney-in-fact (the “Stockholder Representative”) for each Pathlore Stockholder (except such stockholders, if any, as shall have exercised their dissenters’ rights under the DGCL), Representative for and on behalf of the Pathlore StockholdersIndemnifying Parties, to do and perform every act and thing required or permitted to be done by any Pathlore Stockholder in connection with Article VII of this Agreement and the matters contemplated thereby, including to give and receive notices (including services of process) and communications, to authorize delivery to SumTotal the Indemnified Parties of cash and stock from the Indemnity Escrow Fund or the Stockholder Claim Escrow Fund in satisfaction of claims by SumTotalIndemnified Parties, to object to such deliveries, to engage and employ agents and representatives (including accountants, legal counsel and other professionals) and to incur such other expenses as deemed necessary or prudent, to agree to, negotiate, negotiate and enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to to, such claims, to execute and deliver the Escrow Agreement, the Bonus Plan Escrow Agreement and the Stockholder Claim Escrow Agreement (together with such additions, deletions, modifications or changes as the Stockholder Representative shall approve, his execution thereof to be conclusive evidence of his approval and the authorization of the Escrow Agreement, the Bonus Plan Escrow Agreement and the Stockholder Claim Escrow Agreement hereby), amend, modify or waive any of the provisions of this Agreement, the Escrow Agreement, the Bonus Plan Escrow Agreement and the Stockholder Claim Escrow Agreement or any other agreement contemplated hereby for the benefit of the Indemnifying Parties (in accordance with the amendment modification and waiver provisions of such agreements), in any manner in which the Stockholder Representative believes to be in the best interests of the Indemnifying Parties, to assert, bring, prosecute, maintain, settle, compromise, arbitrate or otherwise resolve on behalf of the Stockholders any claim for indemnification by any Stockholder Indemnified Party pursuant to Article VII or any other claim, arbitration, dispute, action, suit, or other proceeding in connection with this Agreement or the Escrow Agreement, the Bonus Plan Escrow Agreement and the Stockholder Claim Escrow Agreement to take all actions required by this Agreement to distribute any Adjustment Amount Decrease, and to take all actions necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing. (b) By such Stockholder Representative’s execution hereof, he hereby accepts his appointment as the Stockholder Representative. The Stockholder Representative may resign as Stockholder Representative at any time with or without cause by giving thirty (30) days prior written notice to the Indemnifying Parties, Escrow Agent and Buyer, such resignation to be effective no sooner than thirty (30) days following the date such notice is given. Such agency may be changed (or a successor appointed in the event of the death, disability or resignation of the Stockholder Representative) by the Pathlore Stockholders Indemnifying Parties who held a majority of the shares of Company Capital Stock (determined on an as-converted to Company Common Stock basis) as of immediately prior to the Closing from time to time upon not less than thirty (30) days days’ prior written notice to SumTotal; Buyer, provided that the Stockholder Representative may not be removed unless holders of a Indemnifying Parties holding two-thirds interest of the Escrow Fund shares of Company Capital Stock (determined on an as-converted to Company Common Stock basis) as of immediately prior to the Closing agree to such removal and to the identity of the substituted agent. Any vacancy in In the position event of the death, disability, resignation or removal of the Stockholder Representative, a successor or replacement Stockholder Representative may shall be filled by approval appointed no later than ten (10) days following the last date of service of the holders Stockholder Representative that is being replaced. Any such substitute representative shall be deemed to be the Stockholder Representative for all purposes of this Agreement. In the event that a successor Stockholder Representative is not appointed within such ten (10) day period, Buyer and other parties hereto shall be entitled to rely on any action of the Indemnifying Parties holding a majority of the shares of Company Capital Stock (determined on an as-converted to Company Common Stock basis) as of immediately prior to the Closing as the action of all of the Indemnified Parties, and such majority in interest shall have all of the Escrow Fundrights and duties of the Stockholder Representative hereunder. No bond shall be required of the Stockholder Representative, and the Stockholder Representative shall not receive compensation for his or her services. The out-of-pocket fees and expenses incurred by the Stockholder Representative in connection with the performance of his duties and obligations hereunder shall be paid first from the Expense Reimbursement Amount in accordance with Section 1.7(e). Notices or communications to or from the Stockholder Representative shall constitute notice to or from each of the Pathlore Stockholders. The Stockholder Representative shall notify each of the Pathlore Stockholders, at the address set forth on the Spreadsheet (or such other address delivered in writing to the Stockholder Representative), of any claim made by an Indemnified Party hereunder pursuant to Section 7.3(d)Indemnifying Parties. (iic) The Stockholder Representative shall not be liable for any act done or omitted hereunder as Stockholder Representative while acting in good faith, absent bad faith or willful misconductand in the exercise of reasonable judgment. The Pathlore Stockholders on whose behalf the Escrow Amount was contributed to the Escrow Fund Indemnifying Parties shall severally but not jointly indemnify and hold harmless the Stockholder Representative from the Escrow Fund and hold the Stockholder Representative harmless against any loss, liability or expense Loss incurred without bad faith gross negligence or willful misconduct on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative. Subject All Losses for which the Stockholder Representative is entitled to be indemnified by the Indemnifying Parties pursuant to this Section 1.7(e8.1(c) shall be paid (and allocated among the Indemnifying Parties) as follows: (i) first, from the SR Expense Fund in accordance with Section 2.10(d), (ii) second, to the extent the SR Expense Fund has been exhausted, from the Indemnity Escrow Fund in accordance with Section 2.10(b) and the Stockholder Claim Escrow Fund in accordance with Section 2.10(c), provided that no payment shall be so made to the Stockholder Representative from the Indemnity Escrow Fund until such funds are to be released from the Indemnity Escrow Fund to the Escrow Participants pursuant to this Agreement and the Escrow Agreement, free and clear from any claim by any Indemnified Party, and provided further that no payment shall be so made to the Stockholder Representative from the Stockholder Claim Escrow Fund until such funds are to be released from the Stockholder Claim Escrow Fund to the Stockholder Claim Escrow Participants pursuant to this Agreement and the Stockholder Claim Escrow Agreement, free and clear from any claim by any Indemnified Party, and (iii) by the Indemnifying Parties (other than the Bonus Plan Participants) as if such payments were payments of Excess Indemnification Payments in accordance with Section 7.5(a). Any right of the Stockholder Representative to payment pursuant to the foregoing clauses (ii) and (iii) shall be subordinate to the rights of any Indemnified Parties to payment from the Indemnity Expense Fund, the Stockholder Claim Escrow Fund or to payments of Excess Indemnification Payments. (d) The Escrow Agent shall distribute to the Stockholder Representative all or a portion of the SR Expense Fund at any time and from time to time within two (2) Business Days after notice to the Escrow Agent by the Stockholder Representative, which notice need not be given to Buyer or any other reasonable expenses incurred by Indemnified Party, and in no event shall Buyer or any Indemnified Party have any right of consent or approval over any distribution or payment from the SR Expense Fund. Neither Buyer nor any other Indemnified Party shall have any right to or interest in any amounts in the SR Expense Fund or to require the Escrow Agent to keep such amounts in the SR Expense Account. Within ten (10) days following the termination of the Escrow Agreement, Escrow Agent shall distribute from the SR Expense Fund to the SR Expense Participants in proportion to their respective SR Expense Percentages the then remaining amount of the SR Expense Fund. (e) A decision, act, consent or instruction of the Stockholder Representative shall constitute a decision of all Indemnifying Parties and shall be paid out final, binding and conclusive upon each of Indemnifying Party, and Buyer may rely upon any such decision, act, consent or instruction of the Escrow Amount after all distributions to SumTotal are made in satisfaction Stockholder Representative as being the decision, act, consent or instruction of each every Indemnifying Party. Each Indemnified Person is hereby relieved from any claims on the Escrow Fund and prior liability to any distribution Person for any acts done by it in accordance with such decision, act, consent or instruction of the Stockholder Representative. (f) The provisions of this Article VIII are independent, severable, irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Indemnifying Parties may have in connection with the transactions contemplated by this Agreement. The provisions of this Article VIII shall be binding upon the heirs, legal representatives, successors and assigns of each Indemnifying Party and any references in this Agreement to an Indemnifying Party shall mean and include the successors to the Pathlore Stockholdersrights of such Indemnifying Party hereunder, whether pursuant to testamentary disposition, the laws of descent and distribution, assignment or otherwise.

Stockholder Representative; Power of Attorney. (i) In the event that the First Merger is approved, effective upon such vote, and without further act of any stockholder, Xx. Xxxxx Xxxxxx Laura Witt shall be appointed as agent and attorney-in-fact (the “Stockholder Representative”"STOCXXXXXXX XXPRESENTATIVE") for each Pathlore Stockholder stockholder of the Company (except such stockholders, if any, as shall have exercised perfected their appraisal or dissenters’ ' rights under the DGCLDelaware Law), for and on behalf of the Pathlore Stockholdersstockholders of the Company, to do and perform every act and thing required or permitted to be done by any Pathlore Stockholder in connection with Article VII of this Agreement and the matters contemplated thereby, including to give and receive notices and communications, to authorize delivery to SumTotal Parent of cash and stock shares of Parent Common Stock from the Escrow Fund in satisfaction of claims by SumTotalParent, to object to such deliveries, to engage and employ agents and representatives (including accountants, legal counsel and other professionals) and to incur such other expenses as deemed necessary or prudent, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing. Such agency may be changed by the Pathlore Stockholders stockholders of the Company from time to time upon not less than thirty (30) days prior written notice to SumTotalParent; provided that the Stockholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. Any vacancy in the position of Stockholder Representative may be filled by approval of the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Stockholder Representative, and the Stockholder Representative shall not receive compensation for his or her its services. The out-of-pocket fees and expenses incurred by the Stockholder Representative in connection with the performance of his duties and obligations hereunder shall be paid first from the Expense Reimbursement Amount in accordance with Section 1.7(e). Notices or communications to or from the Stockholder Representative shall constitute notice to or from each of the Pathlore Stockholders. The Stockholder Representative shall notify each stockholders of the Pathlore Stockholders, at the address set forth on the Spreadsheet (or such other address delivered in writing to the Stockholder Representative), of any claim made by an Indemnified Party hereunder pursuant to Section 7.3(d)Company. (ii) The Neither the Stockholder Representative nor any agent employed by him shall not be liable for any act done or omitted hereunder as Stockholder Representative in good faithRepresentative, absent bad faith except for his or her gross negligence or willful misconduct. The Pathlore Stockholders stockholders of the Company on whose behalf the Escrow Amount was contributed to the Escrow Fund shall severally on a pro rata basis (based on the Merger Shares to which such stockholders are entitled) indemnify the Stockholder Representative from the Escrow Fund and hold the Stockholder Representative harmless against any loss, liability or expense incurred without bad faith gross negligence or willful misconduct on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative’s 's duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative; provided, however, that each stockholder's obligation to indemnify the Stockholder Representative under this Agreement shall be limited to, and payable from, each stockholder's pro rata interest in the Escrow Fund. Subject to Section 1.7(e), all other reasonable expenses incurred by the The Stockholder Representative shall be paid out of protected in acting upon any notice, statement or certificate believed by him to be genuine and to have been furnished by the Escrow Amount after all distributions appropriate person and in acting or refusing to SumTotal are made act in satisfaction of good faith on any claims on the Escrow Fund and prior to any distribution to the Pathlore Stockholdersmatter.

Stockholder Representative; Power of Attorney. (ia) In By virtue of the event that execution and delivery of a Joinder and Waiver Agreement, and the adoption of this Agreement and approval of the First Merger is approved, effective upon such voteby the Company Stockholders, and without any further act action of any stockholderof the Company Stockholders or the Company, Xx. Xxxxx Xxxxxx each of the Company Stockholders shall be appointed deemed to have agreed to appoint the Stockholder Representative as agent their sole and exclusive agent, representative and attorney-in-fact for such Company Stockholder and all Company Stockholders collectively for all purposes related to this Agreement (including, without limitation, with respect to any matter, suit, claim, action or proceeding arising with respect to the “Stockholder Representative”) for each Pathlore Stockholder (except such stockholdersMerger or any Transaction contemplated by this Agreement, if anyto receive and distribute payments, as shall have exercised their dissenters’ rights under the DGCL), for and service of process upon or on behalf of the Pathlore StockholdersCompany Stockholders or any of them, to do delivery and perform every act and thing required receipt of all notices on behalf of the Company Stockholders or permitted to be done by any Pathlore Stockholder in connection with Article VII of this Agreement and the matters contemplated thereby, including to give and receive notices and communicationsthem, to authorize delivery payment to SumTotal any Indemnified Party from any portion of cash the Aggregate Consideration and stock from the Escrow Fund otherwise in satisfaction of indemnification claims by SumTotalany Indemnified Party pursuant to this Article VI, to object to such deliveries, to engage and employ agents and representatives (including accountants, legal counsel and other professionals) and to incur such other expenses as deemed necessary or prudentpayments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any indemnification claim hereunder or any dispute between any Indemnified Party and any Indemnifying Party, in each case relating to such claimsthis Agreement, the Related Agreements or the Transactions, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing. Such agency may be changed foregoing or (ii) specifically mandated by the Pathlore terms of this Agreement and/or the Related Agreements), and the Company Stockholders from time to time upon not less than thirty (30) days prior written notice to SumTotal; provided that the Stockholder Representative or any of them may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. Any vacancy in the position of Stockholder Representative may be filled by approval of the holders of a majority in interest of the Escrow Fund. No bond shall be required of act only through the Stockholder Representative, and the Stockholder Representative shall not receive compensation for his or her services. The out-of-pocket fees and expenses incurred by the Stockholder Representative Other than in connection with the performance of his duties and obligations hereunder shall be paid first from the Expense Reimbursement Amount in accordance with Section 1.7(e). Notices any claim pursued by an Indemnified Party directly against an Indemnifying Party, notices or communications to or from the Stockholder Representative shall constitute notice to or from the Indemnifying Parties. Notwithstanding the foregoing, the Stockholder Representative shall have no obligation to act on behalf of the Indemnifying Parties, except as expressly provided herein, and for purposes of clarity, there are no obligations of the Stockholder Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedule. (b) A decision, act, consent or instruction of the Stockholder Representative, including an amendment of any provision of this Agreement pursuant to Section 9.7 hereof, shall constitute a decision of the Company Stockholders and shall be final, binding and conclusive upon the Company Stockholders and shall be binding on their successors as if expressly confirmed and ratified in writing, and Parent, the Merger Subs and the Company may rely upon any such decision, act, consent or instruction of the Stockholder Representative as being the decision, act, consent or instruction of the Company Stockholders. All defenses which may be available to any Company Stockholder to contest, negate or disaffirm the action of the Stockholder Representative taken in good faith under this Agreement or any Related Agreement are waived. The powers, immunities and rights to indemnification granted to the Stockholder Representative hereunder: (i) shall survive the resignation or removal of the Stockholder Representative and the Closing and/or any termination of this Agreement, (ii) are coupled with an interest and shall be irrevocable and survive the death, incompetence, bankruptcy or liquidation of any Company Stockholder and shall be binding on any successor thereto, and (iii) shall survive the delivery of an assignment by any Company Stockholder of the whole or any fraction of his, her or its interest in any portion of the Aggregate Consideration. No bond shall be required of the Stockholder Representative. (c) The Stockholder Representative may (i) rely and act upon any statement, report or opinion prepared by or any advice received from the auditors, counsel or other professional advisors of the Stockholder Representative, (iii) rely upon the Final Allocation Schedule, (iv) rely upon any signature believed by it to be genuine, and (v) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Stockholder or other party. Absent fraud, gross negligence or willful misconduct, neither the Stockholder Representative nor its Affiliates, agents or representatives (collectively, the “Stockholder Representative Group”), shall be responsible or held liable, in each case to any Indemnifying Party for any loss or damage resulting from so relying or from acting in accordance with this Agreement or the Related Agreements as the Stockholder Representative. (d) By virtue of the execution and delivery of a Joinder and Waiver Agreement, and the adoption of this Agreement and approval of the First Merger by the Company Stockholders, and without any further action of any of the Company Stockholders or the Company, each of the Pathlore Company Stockholders shall be deemed to have agreed (i) to jointly and severally indemnify and hold harmless the Stockholder Representative Group from and against any and all losses, claims, damages, costs, judgements, fines, amounts paid in settlement, expenses (including, without limitation, legal fees and expenses on a full indemnity basis, costs of counsel and other skilled professionals and in connection with seeking recovery from insurers) and liabilities (collectively, such losses, claims, damages, costs, expenses and liabilities being the “Indemnified Liabilities”) to which Stockholder Representative Group may become subject, insofar as such Indemnified Liabilities (or actions, suits, or proceedings, including any inquiry or investigation or claim, in respect thereof) arise out of, in any way relate to, or result from its acting as Stockholder Representative hereunder or under the Related Agreements and (ii) to reimburse the Stockholder Representative upon demand for all legal or other expenses, if any, incurred in connection with its acting as Stockholder Representative, other than in the case of fraud, gross negligence or willful misconduct, provided, that the Stockholder Representative has acted in compliance with this Agreement. Such Indemnified Liabilities may be recovered from any distribution of the Aggregate Consideration otherwise distributable to the Company Stockholders at the time of distribution or directly from the Company Stockholders. The Stockholder Representative shall notify each of Company Stockholders acknowledge that the Pathlore Stockholders, at the address set forth on the Spreadsheet (or such other address delivered in writing to the Stockholder Representative), of any claim made by an Indemnified Party hereunder pursuant to Section 7.3(d). (ii) The Stockholder Representative shall not be liable for required to expend or risk its own funds or otherwise incur any act done financial liability in the exercise or omitted hereunder as Stockholder Representative in good faithperformance of any of its powers, absent bad faith rights, duties or willful misconductprivileges or pursuant to this Agreement, the Related Agreements or the Transactions. The Pathlore Stockholders on whose behalf the Escrow Amount was contributed to the Escrow Fund shall severally indemnify Furthermore, the Stockholder Representative from the Escrow Fund and hold shall not be required to take any action unless the Stockholder Representative harmless against any losshas been provided with funds, liability security or expense incurred without bad faith or willful misconduct on the part of indemnities which, in its determination, are sufficient to protect the Stockholder Representative against the costs, expenses and arising out of or in connection with the acceptance or administration of the Stockholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative. Subject to Section 1.7(e), all other reasonable expenses liabilities which may be incurred by the Stockholder Representative in performing such actions. (e) Parent, the Merger Subs and the Company shall be paid out entitled to rely on the Stockholder Representative’s authority as the agent, representative and attorney-in-fact of the Escrow Amount after Company Stockholders or any of them for all distributions purposes hereunder and shall have no liability for any such reliance. The Stockholder Representative may resign at any time, and a majority in interest of the Company Stockholders may, upon thirty (30) days prior written notice to SumTotal are made in satisfaction Parent, revoke the authority of any claims on the Escrow Fund and prior to any distribution to the Pathlore StockholdersStockholder Representative by appointment of a new Stockholder Representative.

Stockholder Representative; Power of Attorney. (ia) In Xxxxxx Xxxxxxx (together with his permitted successors, the event that the First Merger “Stockholder Representative”), is approved, effective upon such vote, and without further act of any stockholder, Xx. Xxxxx Xxxxxx shall be appointed as the true and lawful agent and attorney-in-fact (the “Stockholder Representative”) for each Pathlore Stockholder (except such stockholdersParticipating Holder to enter into the Escrow Agreement and to enter into any amendment to, if anyor grant any waiver under, as shall have exercised their dissenters’ rights under the DGCL), for and on behalf of the Pathlore Stockholders, to do and perform every act and thing required or permitted to be done by any Pathlore Stockholder in connection with Article VII of this Agreement after the Closing, and the matters contemplated thereby, including to to: (i) give and receive notices and communicationscommunications to or from Buyer (on behalf of itself or any other Indemnified Party) or the Escrow Agent relating to this Agreement, the Escrow Agreement or any of the Transactions (except to the extent that this Agreement or the Escrow Agreement expressly contemplates that any such notice or communication shall be given or received by such Participating Holders individually); (ii) authorize delivery deliveries to SumTotal Buyer of cash and stock from the Escrow Fund Amount in satisfaction of claims asserted by SumTotalBuyer (on behalf of itself or any other Indemnified Party, including by not objecting to claims thereto); (iii) object to such deliveries, any claims asserted by Buyer or any other Indemnified Party to engage and employ agents and representatives the Escrow Amount; (including accountants, legal counsel and other professionalsiv) and to incur such other expenses as deemed necessary consent or prudent, to agree to, negotiate, enter into settlements and compromises of, and demand agree to arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, ; and to (v) take all actions necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoing. Such agency , in each case without having to seek or obtain the consent of any Person under any circumstance. (b) The person serving as the Stockholder Representative may be changed by the Pathlore Stockholders replaced from time to time upon not less than thirty (30) days prior written notice to SumTotal; provided that the Stockholder Representative may not be removed unless holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. Any vacancy in the position of Stockholder Representative may be filled by approval of the holders of a majority in interest of the Escrow FundAmount upon not less than 10 days’ prior written notice to Buyer and with Buyer’s written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, the Stockholder Representative may unilaterally assign its obligations hereunder prior to the Closing to an entity affiliated with Wachovia Capital Partners. No bond shall be required of the Stockholder Representative, and the Stockholder Representative shall not receive no compensation for his or her services. The out-of-pocket fees and expenses incurred by the Stockholder Representative in connection with the performance of his duties and obligations hereunder shall be paid first from the Expense Reimbursement Amount in accordance with Section 1.7(e). Notices or communications to or from the Stockholder Representative shall constitute notice to or from each of the Pathlore Stockholders. The Stockholder Representative shall notify each of the Pathlore Stockholders, at the address set forth on the Spreadsheet (or such other address delivered in writing to the Stockholder Representative), of any claim made by an Indemnified Party hereunder pursuant to Section 7.3(d)Participating Holders. (iic) The Stockholder Representative shall not be liable to any Participating Holder for any act done or omitted hereunder under this Agreement or the Escrow Agreement as the Stockholder Representative while acting in good faith and any act done or omitted pursuant to the advice of counsel shall be conclusive evidence of such good faith, absent bad faith or willful misconduct. The Pathlore Stockholders on whose behalf the Escrow Amount was contributed to the Escrow Fund Participating Holders shall jointly and severally indemnify the Stockholder Representative from the Escrow Fund and hold the Stockholder Representative him harmless against any loss, liability or expense incurred without gross negligence or bad faith or willful misconduct on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of his duties under this Agreement. The Stockholder Representative may receive reimbursement directly from the Stockholder Representative’s duties hereunderParticipating Holders (or from any distribution to the Participating Holders to be made under the Escrow Agreement) for any and all expenses, charges and liabilities, including the reasonable fees and expenses of any legal counsel retained by the Stockholder Representative. Subject to Section 1.7(e)attorneys’ fees, all other reasonable expenses reasonably incurred by the Stockholder Representative in the performance or discharge of his rights and obligations under this agreement; provided, however, that none of the Buyer, the Surviving Corporation or any of their respective Affiliates shall have any liability with respect to such items. (d) The Stockholder Representative shall have access to relevant information about the Company and the reasonable assistance of Buyer’s employees, upon reasonable notice, during normal business hours and in a manner that does not disrupt or interfere with business operations, for purposes of performing his duties and exercising his rights under this Agreement and the Escrow Agreement; provided that the Stockholder Representative shall treat confidentially and not use or disclose to anyone any nonpublic information from or about the Company (except for disclosures on a need to know basis to individuals who agree to treat such information confidentially under terms of a confidentiality agreement reasonably acceptable to Buyer). (e) Any notice or communication given or received by, and any decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, the Stockholder Representative shall constitute a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of all the Participating Holders and shall be paid out final, binding and conclusive upon each such Participating Holder; and each Indemnified Party and the Escrow Agent shall be entitled to rely upon any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction as being a notice or communication to or by, or a decision, action, failure to act within a designated period of time, agreement, consent, settlement, resolution or instruction of, each and every such Participating Holder. Each Indemnified Party and the Escrow Agent are hereby relieved from any liability to any Person for any acts done by them in accordance with any such notice, communication, decision, action, failure to act within a designated period of time, agreement, consent or instruction of the Stockholder Representative. (f) Without limiting the generality or effect of Section 8.6(a), any and all claims and disputes between or among any Indemnified Party, the Stockholder Representative or any one or more Participating Holders relating to this Agreement or the Escrow Amount after all distributions to SumTotal are made Agreement shall in satisfaction the case of any claims claim or dispute asserted by or against or involving any such Participating Holder, be asserted or otherwise addressed solely by the Stockholder Representative on behalf of such Participating Holder (and not by such Participating Holder acting on its own behalf). The parties hereby acknowledge and agree that this Agreement may be enforced, and except as otherwise required by applicable Law, any amendment to or waiver under this Agreement may be agreed to or granted, on behalf of the Escrow Fund and prior to any distribution to Participating Holders by the Pathlore StockholdersStockholder Representative.

Stockholder Representative; Power of Attorney. (a) By virtue of (i) In the event that execution of this Agreement by the First Merger is approvedPrincipal Stockholders, effective upon such vote(ii) the execution of the Option Cancellation Agreement by each Optionholder and (iii) the effectiveness of the Short-Form Merger, each of the Stockholders and without further act of any stockholder, Xx. Xxxxx Xxxxxx Optionholders shall be appointed deemed to have agreed to appoint Accel-KKR Company, LLC as its agent and attorney-in-fact (the “Stockholder Representative”) for each Pathlore Stockholder (except such stockholders, if anyfact, as shall have exercised their dissenters’ rights under the DGCL), Stockholder Representative for and on behalf of the Pathlore Stockholders, to do Stockholders and perform every act and thing required or permitted to be done by any Pathlore Stockholder in connection with Article VII of this Agreement and the matters contemplated thereby, including Optionholders to give and receive notices and communications, to authorize delivery payment to SumTotal of cash and stock any Parent Indemnified Party from the Escrow Fund and directly against the Principal Stockholders in satisfaction of claims by SumTotalany Parent Indemnified Party (including, without limitation, in accordance with Section 8.6(a)), to object to such deliveries, to engage and employ agents and representatives (including accountants, legal counsel and other professionals) and to incur such other expenses as deemed necessary or prudentpayments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Parent Indemnified Party against any Principal Stockholder or by any such Principal Stockholder against any Parent Indemnified Party or any dispute between any Parent Indemnified Party and any such Principal Stockholder, in each case relating to this Agreement or the transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the sole judgment of the Stockholder Representative for the accomplishment of the foregoingforegoing or (ii) specifically mandated by the terms of this Agreement. Each Stockholder hereby acknowledges such agency and the arrangements contemplated in this Article VIII. Such agency may be changed by the Pathlore Stockholders from time to time upon not less than thirty (30) 30 days prior written notice to SumTotalParent; provided provided, however, that the Stockholder Representative may not be removed unless (i) during the Escrow Period (and any extension thereof) holders of a two-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent and (ii) following the Escrow Period (and any extension thereof), each of the Principal Stockholders agrees to such removal and to the identity of the substituted agent. Any Notwithstanding the foregoing, a vacancy in the position of Stockholder Representative may be filled by approval of the holders of a majority in interest of the Escrow Fund. No bond shall be required of the Stockholder Representative, and the Stockholder Representative shall not receive any compensation for his or her its services. The out-of-pocket fees and expenses incurred by the Stockholder Representative in connection with the performance of his duties and obligations hereunder shall be paid first from the Expense Reimbursement Amount in accordance with Section 1.7(e). Notices or communications to or from the Stockholder Representative shall constitute notice to or from each of the Pathlore Principal Stockholders. The Stockholder Representative shall notify each of the Pathlore Stockholders, at the address set forth on the Spreadsheet (or such other address delivered in writing to the Stockholder Representative), of any claim made by an Indemnified Party hereunder pursuant to Section 7.3(d). (iib) The Stockholder Representative shall not be liable for any act done or omitted hereunder as Stockholder Representative while acting in good faith, absent bad faith or willful misconductand in the exercise of reasonable judgment. The Pathlore Stockholders on whose behalf the Escrow Amount was contributed to the Escrow Fund shall severally indemnify the Stockholder Representative from the Escrow Fund and hold the Stockholder Representative harmless against any loss, liability or expense incurred without bad faith or willful misconduct on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative’s duties hereunder, including the reasonable fees and expenses of any legal counsel retained by the Stockholder RepresentativeRepresentative (“Stockholder Representative Expenses”). Subject Each Stockholder shall acknowledge its obligation to Section 1.7(e)indemnify the Stockholder Representative for Stockholder Representative Expenses. (c) Following the termination of the Final Escrow Period, the resolution of all other reasonable expenses incurred unresolved claims and the satisfaction of all claims made by Parent Indemnified Parties for Losses, the Stockholder Representative shall be paid out of have the Escrow Amount after all distributions right to SumTotal are made in satisfaction of any claims on recover Stockholder Representative Expenses from the Escrow Fund and prior to any distribution to the Pathlore Stockholders and Optionholders, and prior to any such distribution, shall deliver to the Escrow Agent a certificate setting forth the Stockholder Representative Expenses actually paid, sustained or incurred, or reasonably anticipated to be paid, sustained or incurred. (d) A decision, act, consent or instruction of the Stockholder Representative, including but not limited to an amendment or waiver of this Agreement pursuant to Section 9.1 or Section 9.2 hereof, shall constitute a decision of the Principal Stockholders and shall be final, binding and conclusive upon the Principal Stockholders; and the Escrow Agent and Parent may rely upon any such decision, act, consent or instruction of the Stockholder Representative as being the decision, act, consent or instruction of the Principal Stockholders. The Escrow Agent and Parent are hereby relieved from any Liability to any person for any acts done by them in accordance with such decision, act, consent or instruction of the Stockholder Representative, other than with respect to acts of Parent or the Escrow Agent that constitute bad faith, fraud, gross negligence or willful misconduct.

Stockholder Representative; Power of Attorney. (i) In Each of the event that the First Merger is approvedparties hereto agrees that, effective upon such vote, the execution of this Agreement and without further act of any stockholderIndemnifying Party, Xx. Xxxxx and for valuable consideration (being the mutual obligations assumed by the parties under this Agreement), Xxxxxxx Xxxxxx shall be irrevocably (subject to any change of such agency upon prior written consent of a Majority-in-Interest as provided below) appointed as agent and attorney-in-fact for each Company Stockholder (the “Stockholder Representative”) for each Pathlore Stockholder (except such stockholders, if any, as shall have exercised their dissenters’ rights under the DGCL), for and on behalf of the Pathlore Stockholdersall of them, to do and perform every act and thing required or permitted to be done by any Pathlore Stockholder in connection with Article VII of this Agreement and the matters contemplated thereby, including to give and receive notices and communications, to authorize delivery payments to SumTotal of cash and stock from the Escrow Fund any Parent Indemnified Party in satisfaction of claims by SumTotalany Parent Indemnified Party, to object to such deliveries, to engage and employ agents and representatives (including accountants, legal counsel and other professionals) and to incur such other expenses as deemed necessary or prudentpayments, to agree to, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to such claims, to agree to modifications, amendments and waivers to this Agreement on behalf of the Company Stockholders, to assert, negotiate, enter into settlements and compromises of, and demand arbitration and comply with orders of courts and awards of arbitrators with respect to, any other claim by any Parent Indemnified Party against any Company Stockholder or by any Company Stockholder against any Parent Indemnified Party or any dispute between any Parent Indemnified Party and any Company Stockholder, in each case relating to this Agreement or the Acquisition or the other transactions contemplated hereby, and to take all other actions that are either (i) necessary or appropriate in the judgment of the Stockholder Representative for the accomplishment of the foregoingforegoing or (ii) specifically mandated by the terms of this Agreement. Such agency may be changed by the Pathlore Company Stockholders from time to time upon not less than thirty (30) days prior written notice to SumTotal; provided that the Stockholder Representative may not be removed unless holders consent of a twoMajority-thirds interest of the Escrow Fund agree to such removal and to the identity of the substituted agent. Any vacancy in the position of Stockholder Representative may be filled by approval of the holders of a majority in interest of the Escrow Fundin-Interest. No bond shall be required of the Stockholder Representative, and the Stockholder Representative shall not receive any compensation for his or her its services. The out-of-pocket ; provided, however, that the Stockholder Representative shall be entitled to seek reimbursement from the Escrow Fund for any reasonable fees and expenses incurred by the Stockholder Representative in connection with the performance of his the Stockholder Representative’s duties and obligations hereunder shall be paid first from up to $5,000 in the Expense Reimbursement Amount in accordance with Section 1.7(e)aggregate. Notices or communications to or from the Stockholder Representative shall constitute notice to or from each of the Pathlore Company Stockholders. The A decision, act, consent or instruction of the Stockholder Representative (including an amendment, extension or waiver of this Agreement) shall notify constitute a decision of all the Company Stockholders, and shall be final, binding and conclusive upon each Company Stockholder, and Buyer may rely upon any such decision, act, consent or instruction of the Pathlore StockholdersStockholder Representative as being the decision, at the address set forth on the Spreadsheet (act, consent or instruction of each Company Stockholder. The Escrow Agent and Buyer are hereby relieved from any Liability to any Person for any acts done by it in accordance with such other address delivered in writing to decision, act, consent or instruction of the Stockholder Representative), of any claim made by an Indemnified Party hereunder pursuant to Section 7.3(d). (ii) . The Stockholder Representative shall not be liable for any act done or omitted hereunder as the Stockholder Representative while acting in good faith, absent bad faith or willful misconductand in the exercise of reasonable judgment. The Pathlore Stockholders on whose behalf the Escrow Amount was contributed to the Escrow Fund Indemnifying Parties shall severally indemnify the Stockholder Representative from the Escrow Fund and hold the Stockholder Representative harmless against any loss, liability or expense incurred without negligence, willful misconduct or bad faith or willful misconduct on the part of the Stockholder Representative and arising out of or in connection with the acceptance or administration of the Stockholder Representative’s duties hereunder, including the reasonable fees and 56 expenses of any legal counsel retained by the Stockholder RepresentativeRepresentative (“Stockholder Representative Expense”). Subject Upon any payment to Section 1.7(e)the Stockholder Representative of amounts from the Escrow Fund for distribution to the Indemnifying Parties pursuant to Sections 8.4 and 8.5, all other reasonable expenses incurred by the Stockholder Representative shall be paid out have the right to recover the Stockholder Representative Expenses from the remaining Escrow Fund, up to an aggregate of the Escrow Amount after all distributions to SumTotal are made in satisfaction of any claims on the Escrow Fund and prior to any distribution to the Pathlore Stockholders$5,000.